Kiran Kumar, Bangalore V. TRO, Bangalore

ITA 1516/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51360 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT
• Assessee Lawyers: SUKESH PATIL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER ITA NO. 1516/BANG/2010 ASSESSMENT YEAR : 2005-06 MR. KIRAN KUMAR, PATTAMGERE, R.R. NAGAR POST, BANGALORE 560 098. PAN : AQYPK 5581C VS. THE TAX RECOVERY OFFICER (TDS), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI SUKESH PATIL, C.A. RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JT.CIT(DR) DATE OF HEARING : 09.11.2011 DATE OF PRONOUNCEMENT : 18.11.2011 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 3.12.2010 OF THE CIT(APPEALS)-V, BANGALORE. 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS A PPEAL: 1. THE ORDER OF THE A.O IS BAD IN LAW AND AGAINST THE FACT OF THE CASE. ITA NO.1516/BANG/2010 PAGE 2 OF 4 2. THE ORDER OF THE A.O IS ARBITRARY AND PASSED ORD ER WITHOUT APPLICATION OF HIS MIND. 3. THE A.O. ERRED IN ASSESS THE INCOME AT RS.45,94, 000 BASED ON THE INFORMATION AVAILABLE WITH HIM, WHEREAS THE INFORMATION IS FOR SALE OF PROPERTY NOT FOR INVESTMENT IN PROPERTY . 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE HONBLE CIT(A)-V, BANGALORE IS JUSTIFIED IN DISMISS ING THE APPEAL WITHOUT PROVIDING AN OPPORTUNITY TO RECTIFY THE DEFECTS I.E., DELAY IN FILING THE APPEAL BEFORE CASE IS HEARD ON MERIT. 5. FOR THESE OR OTHER REASONS WHICH MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ENTIRE ASSES SMENT INCOME OF RS.45,94,000 MAY BE CANCELLED/DELETED. 6. APPELLANT CRAVES LEAVES TO ADD, TO AMEND, TO ALT ER AND TO DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O.4 IS THAT THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE W ITHOUT PROVIDING AN OPPORTUNITY TO RECTIFY THE DEFECTS AND THE CASE WAS NOT DISPOSED OF ON MERITS. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSING OFFICER ISSUED TO THE ASSESSEE A NOTICE U/S. 142 OF THE INCOME-TAX AC T, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT] DATED 14.9.2007 CALLING FOR HIS RETURN OF INCOME ALONG WITH DETAILS OF CREDIT CARD EXPENSES. THE SAID NOTICE WAS NOT COMPLIED WITH BY THE ASSESSEE. THE AO FRAMED THE A SSESSMENT U/S. 144 OF THE ACT AT AN INCOME OF RS.45,94,000. THE ASSE SSEE CARRIED THE MATTER TO THE LD. CIT(APPEALS) WHO DISMISSED THE APPEAL IN LIMINE AND OBSERVED THAT THE ASSESSEE OUGHT TO HAVE FILED THE APPEAL ON OR BEFORE 8.8.2008, BUT THE SAME WAS FILED ON 19.8.2008 BEYOND THE PRESCRIB ED TIME LIMIT AND WITHOUT ANY PETITION FOR CONDONATION OF DELAY. NOW THE ASSESSEE IS IN APPEAL. ITA NO.1516/BANG/2010 PAGE 3 OF 4 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE STANDS COVERED BY THE EARLIER ORDER OF THIS BENCH OF THE T RIBUNAL IN ITA NO.25/BANG/2011 FOR THE A.Y. 2005-06 IN THE CASE OF SRI SHIVARAJU, PATTAMGERE V. TRO(TDS) VIDE ORDER DATED 13.10.2011. COPY OF THE SAID ORDER WAS ALSO FURNISHED. IT WAS POINTED OUT THAT THE FACTS OF THE ASSESSEES CASE AND THE CASE OF SHIVARAJU, PATTAMGE RE, ARE IDENTICAL. 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR ALTHOUGH SU PPORTED THE ORDER OF THE LD. CIT(APPEALS), BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND MATERIAL ON RECORD, IT APPEARS THAT THE LD. CIT(APPEALS) DISMIS SED THE APPEAL FILED BY THE ASSESSEE IN LIMINE . IT ALSO APPEARS THAT THE LD. CIT(A) HAD NOT PROV IDED DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE TO EXPLAIN THE DELAY IN FILING THE APPEAL. MORE OVER, THE APP EAL HAD NOT BEEN DISPOSED OF ON MERITS. IT IS WELL SETTLED THAT NOBODY SHALL BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, THE LD. CIT(A) NOWHERE STATED THAT ANY DEFECT MEMO WAS ISSUED TO T HE ASSESSEE TO EXPLAIN THE REASON FOR FILING THE APPEAL BEFORE HIM BELATEDLY. SO WE DEEM IT APPROPRIATE TO SEND THE CASE BACK TO THE FILE OF TH E LD. CIT(APPEALS) TO DECIDE THE SAME AFRESH AFTER PROVIDING DUE AND REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR THE AFORESAID VI EW, WE ARE ALSO FORTIFIED BY THE DECISION DATED 13.10.2011 OF THIS BENCH OF T HE TRIBUNAL HAVING THE SAME CONSTITUTION IN THE AFORESAID REFERRED TO CASE OF SRI SHIVARAJU, PATTAMGERE V. TRO(TDS) IN ITA NO.25/BANG/2011 FOR T HE ASSESSMENT YEAR 2005-06. ITA NO.1516/BANG/2010 PAGE 4 OF 4 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF NOVEMBER, 2011. SD/- SD/- ( GEORGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 18 TH NOVEMBER, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.